IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: ___________

In the matter between:

GREENPEACE AFRICA Applicant

and

THE MINISTER OF ENERGY First Respondent

THE NATIONAL NUCLEAR REGULATOR Second Respondent

THE MINISTER OF FINANCE Third Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

MICHAEL O’BRIEN

do hereby make oath and say:

1 I am the Executive Director employed by the applicant, Greenpeace Africa.

The applicant has duly authorised me to depose to this affidavit.

2 The facts deposed to in this affidavit are within my own personal knowledge,

except where the context indicates otherwise, and are to the best of my belief

true and correct. Where I refer to facts that have been conveyed to me by

others I believe those facts to be true and correct.

2

3 Where I make legal submissions I do so on the advice of the applicant’s legal

representatives.

INTRODUCTION

4 As I explain in detail below, this is an application for declaratory relief, coupled

with an order compelling the Minister of Energy to comply with the provisions of

section 29(2) of the National Nuclear Regulator Act, 47 of 1999 (“the Act”) by

determining the level of financial security to be provided by holders of nuclear

installation licences in respect of various categories of nuclear installations.

5 The present application arises out of a failure by the Minister of Energy to apply

her mind to certain recommendations apparently made to her office by the

second respondent, the National Nuclear Regulator, and to, based on those

recommendations, determine the appropriate present levels of financial security

to be provided by holders of various categories of nuclear installation licences.

The Minister’s conduct in this regard is unlawful and inconsistent with the

Constitution.

6 The Minister’s failure to apply her mind to the NNR’s recommendations, and to

comply with the statutory obligation imposed on her office by section 29(2) of

the Act, means that at present the level of financial security available in the

event of a nuclear disaster at the various nuclear facilities in South Africa is

woefully inadequate. Thus, and as addressed below, in the event of a nuclear

incident occurring at any of these facilities it is likely that there would be

insufficient financial security to ameliorate the consequences of such a disaster.

3

7 The applicant approaches this Court in its own interest and in the public

interest. As to its own interest, I attach marked “MO1” a copy of the applicant’s

Memorandum and Articles of Association which demonstrates its interest in the

relief sought in this application.

8 As to public interest, the applicant’s Memorandum and Articles of Association

confirm that the applicant is an organisation that aims to litigate and advocate in

respect of the type of matters at the heart of this application, and to do so in the

broader public interest. The applicant’s Memorandum and Articles of

Association state that:

“The main object of the Company shall be to engage in the promotion

and advocacy of fundamental human rights with respect to the

environment; with particular concern for the conservation,

rehabilitation, and protection of the natural environment; and the right

to secure an environment that is not harmful to people’s health and

wellbeing; and to undertake such action and activities as may serve

these purposes, primarily within the Republic of South Africa, but also

in other parts of Africa and the world.”

9 I am advised that it cannot be gainsaid that the matter of nuclear energy and

related questions of security are plainly questions of national importance, and

the manner in which government conducts itself in this field affects and has the

potential to affect the public broadly. That much is clear from the Act itself,

which is aimed at the protection of persons, property and the environment

against nuclear damage through the establishment of safety standards and

4

regulatory practices. All South Africans have an interest in the rule of law and

the proper discharge by officials of their statutory and constitutional duties,

particularly where a failure of those duties jeopardises persons, property and

the environment.

PARTIES

10 The applicant is GREENPEACE AFRICA (“Greenpeace”) a not-for-profit

organisation with registration number 067-126-NPO, which has its principal

place of business at 10A and 10B Clamart Road, Richmond, Johannesburg,

Gauteng.

11 The first respondent is the national MINISTER OF ENERGY, care of the State

Attorney, Pretoria. The Minister of Energy, Ms Tina Joemat-Pettersson, is cited

by virtue of the fact that the Act requires her office to determine the level of

financial security to be provided by holders of various categories of nuclear

installation licences.

12 The second respondent is the NATIONAL NUCLEAR REGULATOR (“NNR”),

a public entity established in terms of section 3 of the Act and which, in terms of

section 5 of the Act, has as one of its objects the protection of persons,

property and the environment against nuclear damage through the

establishment of safety standards and regulatory practices.

13 The NNR’s principal place of business is situated at Eco Glades Office Park,

Eco Glades 2, Block G, Witch Hazel Avenue, Highveld Ext 2, Eco Park,

Centurion, Gauteng.

5

14 The NNR is cited by virtue of the fact that the Act requires the National Nuclear

Regulator’s Board of Directors (“the NNR Board”) to make recommendations

to the Minister of Energy relating to the categorisation of nuclear installations

and the determination of levels of financial security to be provided by holders of

various categories of nuclear installation licences.

15 The third respondent is the MINISTER OF FINANCE, care of the State

Attorney, Pretoria. The Minister of Finance, Mr Nhlanhla Nene, is cited by virtue

of the fact that the Act requires the Minister of Finance, in consultation with the

Minister of Energy, to determine the levels of financial security to be provided

by holders of various categories of nuclear installation licences, based on the

potential consequences of a nuclear disaster. No relief is sought against the

Minister of Finance and he is cited by virtue of his interest in this matter.

RELEVANT FACTUAL AND LEGAL BACKGROUND

16 As noted above, this application relates to the failure by the Minister of Energy

to comply with the provisions of section 29(2) of the Act.

17 Section 29(1) read with section 29(2) of the Act requires that the Minister of

Energy must categorise the various nuclear installations in the Republic of

South Africa, based on the potential consequences of a nuclear accident and,

furthermore, must determine the levels of financial security to be provided by

the holders of nuclear installation licences in respect of each of those

categories. The Minister must determine the levels of financial security based

on the recommendations of the NNR.

6

18 The levels of financial security were last determined by the Minister of Energy

in May 2004 “for the financial year 2004/2005”. The levels of financial security

have, since May 2004, not been updated or amended notwithstanding the fact

that the NNR has apparently made recommendations to the Minister to enable

her to do so.

19 There is accordingly currently no lawfully applicable determination of the levels

of financial security as required by the Act, alternatively, the levels of financial

security determined by the Minister of Energy (which applied in 2004/2005) are

wholly insufficient.

20 The Minister of Energy is required by section 29(1) of the Act to categorise the

various nuclear installations in the country based on the potential

consequences of a nuclear accident. Once the various nuclear installations in

the country have been categorised, the Minister of Energy is required by

section 29(2) of the Act, after consideration of the recommendations of the

NNR Board and in consultation with the Minister of Finance, to determine: (i)

the level of financial security to be provided by holders of nuclear installation

licences in respect of each category of nuclear installation, and (ii) the manner

in which that financial security is to be provided.

21 These determinations are made in order to ensure that the holders of nuclear

installation licences are in a position to fulfil any liability which may be incurred

in terms of section 30 of the Act – which provides that holders of nuclear

licences are strictly liable for damage caused by their respective nuclear

facilities.

7

22 The levels of financial security have not been amended, updated or revised in

more than 10 years. The failure by the Minister of Energy to amend the levels

of financial security could result in potentially dire consequences for the people

of South Africa in the event that a nuclear accident was to occur. It is

imperative that adequate levels of security are in place in order to ameliorate

the devastating consequences of a nuclear disaster.

23 In this regard I refer to the events of 11 March 2011, when the Great East

Japan Earthquake struck off the coast of the Tōhoku region of Japan, creating

the triple tragedy for the region of a magnitude 9.0 earthquake, a resulting

tsunami, and the beginning of the ongoing nuclear disaster from triple reactor

core meltdowns and exploded containment buildings at the Fukushima Daiichi

nuclear power plant. As a result of the earthquake and tsunami, communities

were destroyed and thousands of people lost their lives. However, due to the

continuing nuclear crisis in the region, many thousands of nuclear victims will

never be able to return home. Entire communities are contaminated and unsafe

for the foreseeable future. The Fuksuhima Daiichi catastrophe was the most

severe nuclear disaster since Chernobyl in 1986.

24 The natural disasters exposed the significant weaknesses in Japanese nuclear

regulation and management that led to the preventable, human-made

Fukushima disaster. It was a failure of human institutions to acknowledge

genuine reactor risks, a failure to address known safety problems, and a failure

to institute and enforce the adequate nuclear safety standards that ultimately

led to a nuclear disaster and an utter failure to protect the public and the

environment. The lessons from Fukushima are relevant and critically important

8

for the nuclear industry, governments and nuclear regulators around the world

– and most importantly for this application, confirm the need for up-to-date and

adequate levels of security to be in place as insurance against the devastating

consequences of a nuclear disaster.

25 The full costs of the Fukushima nuclear disaster, both human and financial, are

not yet tallied and are likely to continue to grow. In Fukushima Prefecture alone,

an estimated 146 520 people were ordered to evacuate1, and 4 243.2 Billion

YEN2 3 (approximately R450 billion) was listed by Tokyo Electric Power

Company (“TEPCO”) in September 2014 for permanent indemnification and

provisional compensation. TEPCO received 652 000 compensation

applications from individuals, and there are 577 000 permanent indemnification

cases.

26 A massive burden has been placed on the Japanese government (and

ultimately taxpayers) to deal with the consequences of Fukushima: in Japan’s

budget note for 2014, 652.3 Billion YEN (approximately R68 billion) was listed

as the cost of reconstruction after the nuclear disaster. The true cost of the

disaster has yet to be calculated, and there are a number of estimates in the

1 The National Diet of Japan Fukushima Nuclear Accident Independent Investigation Committee (page 38 of the Executive Summary): http://warp.da.ndl.go.jp/info:ndljp/pid/3856371/naiic.go.jp/en/

2 4093.0 Billion YEN for permanent indemnification and 150.2 Billion YEN for provisional compensation

3 All figures are based on: TEPCO. 2014. Records of Applications and Payouts for Indemnification of Nuclear Damage. 5 September 2014 http://www.tepco.co.jp/en/comp/images/jisseki-e.pdf

9

literature – the most accurate estimate of the economic cost of Fukushima at

the moment is approximately R180 billion, as of February 20134.

27 The Act represents the legislature’s best efforts to provide a framework to

ameliorate this kind of devastation that may be wrought by nuclear incident. I

address the legislative provisions implicated in this application below.

(i) Legislative framework

The relevant provisions of the National Nuclear Regulator Act

28 The purpose of the Act is: “[t]o provide for the establishment of a National

Nuclear Regulator in order to regulate nuclear activities, for its objects and

functions, for the manner in which it is to be managed and for its staff matters;

to provide for safety standards and regulatory practices for protection of

persons, property and the environment against nuclear damage; and to provide

for matters connected therewith.”

29 Section 1 of the Act contains the following definitions:

29.1 ‘“board” means the Board of Directors as referred to in section 8(1)”;

and

29.2 “Regulator’’ means the National Nuclear Regulator established by

section 3”.

4 Greenpeace International. 2013. Fukushima Fallout: Nuclear business makes people pay and suffer. Available: http://www.greenpeace.org/international/Global/international/publications/nuclear/2013/FukushimaFallout.pdf

10

30 Section 8(1) of the Act provides that:

“(1) The Regulator is governed and controlled, in accordance with this Act,

by a Board of Directors.”

31 Section 29(1) of the Act provides that:

“The Minister must, on the recommendation of the board and by notice

in the Gazette, categorise the various nuclear installations in the

Republic, based on the potential consequences of a nuclear accident.”

32 Section 29(2) of the Act provides that:

“The Minister must, on the recommendation of the board and in

consultation with the Minister of Finance and by notice in the Gazette,

determine –

(a) the level of financial security to be provided by holders of

nuclear installation licences in respect of each of those

categories; and

(b) the manner in which the financial security is to be

provided,

in order for the holder of a nuclear installation licence to fulfil any

liability which may be incurred in terms of section 30.”

11

33 Section 30 of the Act provides for the strict liability of the holder of a nuclear

installation licence for nuclear damage. Importantly, it limits the liability of the

licence holder to the amounts determined by the Minister of Energy.

34 The section provides, inter alia, as follows:

“(1) Subject to subsections (2), (3), (5) and (6), only a holder of a

nuclear installation licence is, whether or not there is intent or

negligence not the part of the holder, liable for all nuclear damage

caused by or resulting from the relevant nuclear installation during the

holder’s period of responsibility...”

and

“(2) The liability for nuclear damage by any holder of a nuclear

installation licence is limited, for each nuclear accident, to the amounts

determined in terms of section 29(2).” (my emphasis)

35 Furthermore, section 33 of the Act, which deals with claims for compensation in

excess of the maximum liability, provides inter alia as follows:

“(1) If—

(a) the total amount of claims for compensation against a

holder of a nuclear installation licence; or

(b) the total amount of claims for compensation against such

holder plus the estimated amount of claims for

12

compensation likely to be required to be paid, exceeds, or

is likely to exceed, the amount for which that holder has

given security in terms of section 29, the holder must

immediately notify the board and the Minister thereof in

writing.”

and

“(3) If on receipt of that notice, the Minister is satisfied that the total

amount of claims for compensation against a holder of a nuclear

installation licence that is unpaid, and of such claims as are likely

to be made thereafter, will exceed the amount of security given by

that holder in terms of section 29 in respect of such claims, the

Minister must—

(a) table in Parliament a report on the nuclear damage in

question, which recommends that Parliament appropriate

funds for rendering financial assistance to the holder to

the amount by which the claims exceed or are likely to

exceed the security which is available; and

(b) by notice in the Gazette suspend the obligation to pay the

claims in respect of that nuclear damage until Parliament

has decided about the recommendation.”

36 Section 47 of the Act provides that:

13

“(1) The Minister may, after consultation with the board and by notice in the

Gazette, make regulations as to any matter—

(a) required or permitted to be prescribed in terms of this Act;

(b) necessary for the effective administration of this Act.

(2) Any regulation made in terms of subsection (1) may provide that—

(a) the contravention of or failure to comply therewith, is an

offence; and

(b) a person convicted of that offence is punishable with a

prescribed fine or a term of imprisonment not longer than

the period so prescribed.

(3) Before any regulations are made in terms of subsection (1), the

Minister must, by notice in the Gazette, invite comment on the

proposed regulations and consider that comment.” (my emphasis)

GN 581 of 7 May 2004: Regulations in terms of sections 29 (1) and 29 (2), read

with Section 47, of the National Nuclear Regulator Act (“the Regulations”)

37 Regulation 2 of the Regulations deals with the categorisation of nuclear

installations and provides that:

14

“The various nuclear installations in the Republic of South Africa are

categorised as follows, based on the potential consequences of a

nuclear accident –

(a) Category 1: Koeberg Nuclear Power Station

(b) Category 2: Safari – 1 Research Reactor

(c) Category 3: Vaalputs National Radioactive Waste

Disposal Facility and the following installations at

Pelindaba: BEVA, Building P-2500 (ELPROD), Building

2700 (UCHEM), C – Building, Decontamination Facilities,

Foundry YG Building, Hot Cell Comple, HEU Vault, J –

Building, MLIS-X4 Pilot Plant, P-2400 Volume Reduction

Facility, Thabana Pipe Store, Thabana Radioactive

Waste Facility, UMET, U-1-Plant, XB-Building and Z-1-

Plant.”

38 Regulation 3 provides in relation to the level of financial security to be provided,

that:

“3. The level of financial security to be provided by holders of nuclear

installation licences in respect of each of the categories as determined

in section 2 hereof, for the financial year 2004/5, shall be –

(a) Category 1: R2.4 billion to be provided in such currency,

which is acceptable to the Board of the National Nuclear

15

Regulator. Where the financial security has been

provided in a foreign currency and the exchange rate has

resulted in the required level of financial security being

devalued more than 15%, the holder of the nuclear

installation licence must report it to the regulator within 10

days.

(b) Category 2: R120 million.

(c) Category 3: R1 million”. (my emphasis)

(ii) The NNR’s recommendations and the Minister’s failure to comply with

the provisions of section 29(2) of the Act

39 On 22 October 2013, the applicant’s attorneys, Nortons Incorporated

(“Nortons”), addressed a letter to the Minister of Energy, Dr Cohen of the NNR

and the Chief Executive Officer of the NNR, Dr Bismark Tyobeka. Nortons

addressed this letter on behalf of the applicant. I attach a copy of the letter

marked “MO2”.

40 The letter noted the failure of the Minister of Energy to make a determination in

relation to the level of financial security to be provided by nuclear installation

licence holders since the promulgation of the Regulations on 7 May 2004. The

applicant enquired whether the level of financial security had in fact been

reviewed since 2004, and if so, requested a copy of the relevant documentation

evidencing this.

16

41 On 31 October 2013 the NNR replied to Nortons’ letter of 22 October 2013,

stating as follows:

“Kindly be advised that the Board of Directors of the National Nuclear

Regulator has, beginning at a time pre-dating your letter, exercised its

mind on the subject matter hereof, revised the figures of the level of

financial security and made recommendations to the Minister of

Energy.” (my emphasis)

42 A copy of the NNR’s letter is attached marked “MO3”.

43 On 20 November 2013, Nortons addressed a further letter to the NNR and the

Minister of Energy (which I attach marked “MO4”), in which it noted that,

despite the fact that Ms Caroline Nobevu of the Office of the Minster of Energy

had confirmed receipt of the letter of 22 October 2013, and stated that the email

containing the letter to the Minister of Energy would be forwarded to the

Minister, neither the Minister nor any representative from the Department of

Energy had responded to the 22 October 2013 letter.

44 In the 20 November 2013, letter Nortons requested further information in

relation to the date and contents of the recommendations made by the NNR to

the Minister of Energy. A copy of the recommendations was also requested.

Nortons further requested that either the NNR or the Minister of Energy indicate

when the Minister intended to implement the recommendations of the NNR.

45 On 5 February 2014, Nortons sent a further two letters on behalf of the

applicant. The first letter, attached marked annexure “MO5”, addressed to the

17

Minister of Energy, noted that the Minister had failed to respond to all previous

letters and that the NNR had indicated that it had provided its recommendations

to the Minister of Energy in relation to the levels of financial security to be

provided by the holders of nuclear installation licenses. In the letters Nortons

requested the following:

“5. In light of the above response from the NNR, we request that you:

5.1. confirm when the Department of Energy received the

recommendations from the Board of Directors of the NNR

referred to above;

5.2. if such recommendations were received by the Department

of Energy, advise whether the Department of Energy

intends to proceed with the recommendations and, if so,

confirm when the recommendations will be put into effect;

and

5.3. if such recommendations were received and if the

Department of Energy intends to proceed, and in light of

the duties placed upon you as Minister of Energy in terms

of section 29 of the National Nuclear Regulator Act 47 of

1999, please advise why the Department of Energy has

not proceeded to date with the recommended

amendments to the levels of financial security.”

18

46 The second letter, addressed to the NNR, and attached marked annexure

“MO6”, noted that the NNR had failed to respond to Nortons’ letter of 20

November 2013 and pointed out that the NNR, as an organ of state, was

enjoined to act responsively and transparently. Nortons stated further that:

“5. A letter on behalf of our client will also be sent to the Minister of

Energy and the Department of Energy, attaching your letter to us dated

31 October 2013. In the aforementioned letter to the Minister and the

Department, we will:

5.1. request confirmation from the Minister that the NNR made

recommendations to the Minister relating to the level of

financial security; and

5.2. request that the Minister advise whether he intends to

implement the recommendations of the NNR.”

47 On 10 February 2014, in a letter attached marked annexure “MO7”, the NNR

responded noting that the recommendations were made by the NNR Board to

the Minister on 30 July 2013 and that:

“The NNR then had to embark on a process of revising the current

applicable regulations in line with the approved recommendations

before transmitting the recommendations to the Minister. The

transmittal of the recommendations is subject to the NNR’s finalization

of proposed implementing instruments to give effect to the

recommendations.

19

Your request for a copy of the recommendations can unfortunately, not

be met at this time, as we consider the recommendations to be for the

Minister’s consideration.”

48 However, in a letter from the Minister of Energy dated 22 May 2014, attached

marked annexure “MO8”, the Minister of Energy advised that:

“The regulations for categorisation of nuclear installations and the level

of financial security were last published on 07 May 2004. The National

Nuclear Regulator (NNR) is yet to make a recommendation on the

revision of this regulation and you have been made aware of this status

in the letter of 05 February 2014 from the Chairperson of the Board of

the NNR.

Once the NNR has made recommendations, the proposed regulation

will be discussed with the Minister of Finance as required in terms of

Section 29(2) of the NNR Act, following which the regulation will be

published for public comment.”

49 It is apparent from the Minister’s response that she is apparently awaiting the

NNR’s recommendation on the review of the regulation, and has been content

to pass the buck to the NNR by letting the months pass by while the NNR takes

its time to finalise whatever recommendations are required – more than a year

has already elapsed since the 5 February 2014 letter from the NNR in which it

advised the applicant “of this status” regarding the revision process.

20

50 On 19 November 2014, Nortons, on behalf of the applicant, addressed another

letter to the Minister of Energy (copied to the Minister of Finance and to the

Chairperson of the NNR). I attach a copy of this letter marked as “MO9”.

51 In paragraph 6 of the letter it is noted that on 31 October 2013, the Chairperson

of the NNR advised that the NNR had made recommendations to the Minister

of Energy concerning amendments to the levels of financial security in terms of

section 29(1) of the Act.

52 In the letter the applicant called upon the Minister of Energy to urgently apply

her mind to the NNR’s recommendations, and to set an appropriate level of

security as required by section 29(1) of the Act. The Minister was requested to

respond to the applicant’s request within a period of 14 days.

53 The NNR similarly has failed to finalise whatever recommendations are

required – on the Minister’s version – for purposes of revising the applicable

regulations and no revised regulations have been made available for public

comment. This process, if one has regard to the NNR’s correspondence,

began as far back as 30 July 2013 when the NNR made its recommendations

to the Minister. Thereafter, according to the NNR, “[t]he NNR then had to

embark on a process of revising the current applicable regulations in line with

the approved recommendations before transmitting the recommendations to

the Minister. The transmittal of the recommendations is subject to the NNR’s

finalization of proposed implementing instruments to give effect to the

recommendations”.

21

54 The Minister of Energy did not respond to the applicant’s letter of 19 November

2014.

55 On 3 February 2015, Nortons, on behalf of the applicant, addressed a further

letter to the Minister of Energy (copied to the Minister of Finance and to the

Chairperson of the NNR) requesting that the Minister urgently provide a

substantive response in relation to what steps have been taken to ensure

compliance with section 29 of the Act and what steps still need to be finalised

by the Minister. The Minister was requested to respond to the applicant’s letter

within a period of 5 days. I attach a copy of this letter marked as “MO10”.

56 An email was received by Nortons on 10 February 2015 from the Director of

Legal Services at the Department of Energy requesting that the Minister be

afforded an extension of a further week to respond to the 3 February 2015

letter. In a letter dated 11 February 2015, an extension to 16 February 2015

was granted. I attach a copy of the email and this letter marked as “MO11” and

“MO11” respectively.

57 At the time of deposing to this affidavit the Minister of Energy has not

responded to the applicant’s letter of 3 February 2015, notwithstanding

undertaking to do so by 16 February 2015, and there is no indication that she

has applied her mind to the NNR’s recommendations, or has encouraged the

NNR to finalise whatever recommendations are outstanding to ensure the

suggested revision of the regulations for categorisation of nuclear installations

and the level of financial security, despite more than a year and a half going by

in this regard.

22

58 The Minister is ultimately responsible for ensuring that the levels of financial

security are properly set. It is incumbent on her to do whatever is necessary to

perform that statutory duty, and she cannot hide behind any failings by the NNR

in this respect, or pass the buck to other organs of state. In short, her office

has failed to finalise the requisite processes to ensure compliance with the

statutory obligation imposed by section 29 of the Act to set the levels of

financial security that would be called upon in the event that any of the nuclear

facilities in South Africa suffered a nuclear disaster.

RELIEF SOUGHT

59 Section 29(2) of the Act is clear. It obliges the Minister of Energy to determine

the levels of financial security to be provided by the holders of nuclear

installation licences in respect of each of those categories. It provides that the

Minister “must” do so based on the recommendations of the NNR, and in

consultation with the Minister of Finance.

60 What has emerged from the applicant’s various letters to the Minister and the

NNR is that the NNR claims to have made recommendations to the Minister,

but that the Minister has not applied her mind to the appropriate levels of

financial security in terms of section 29(2) of the Act, or if she has, the Minister

has failed to take whatever steps are necessary to ensure that the process is

finalised as expeditiously as possible in order that her obligations under section

29(2) are met. It has been more than a year and a half since the NNR

indicated that it had – as far back as 30 July 2013 – made its recommendations

to the Minister regarding new levels of financial security. Notwithstanding the

23

applicant’s persistent attempts to call upon the NNR and the Minister to

disclose the NNR’s recommendations, and to set the appropriate levels of

security, the Minister has failed to finalise the process by setting the levels of

security. This failure is wanton, given that the levels of security are outdated by

more than a decade.

61 The applicant was thus left with no choice but to approach this Court. In the

circumstances it seeks an order in terms of section 172(1)(a) of the Constitution

declaring that the Minister has failed to comply with section 29(2) of the Act,

thereby acting in a manner that is unlawful, and inconsistent with the

Constitution. Coupled with this, it seeks an order compelling the Minister to

comply with the provisions of section 29(2) of the Act.

62 I submit that ensuring the Minister’s compliance with the Act is fundamentally

important. It is imperative that the levels of financial security that must be

provided by nuclear installation licence holders are current and calculated with

reference to variables such as inflation and the extent to which development in

areas surrounding nuclear facilities may have increased the potential damage

that could be caused by a nuclear disaster.

63 In failing to comply with the obligations imposed on her office, the Minister of

Energy has failed to ensure that the people of South Africa are adequately

protected from the potential irreparable harm that could be caused by the cost

to the taxpayer of a nuclear disaster as contemplated in terms of the Act. That

failure, in turn, potentially threatens the public’s environmental rights under the

Constitution, and the property rights of countless South Africans. It also means

24

that the taxpayers of this country – its citizens – stand at risk of having to cover

the devastating costs of any shortfall in security because of the outdated levels

currently in place under the Act.

CONCLUSION

64 I respectfully submit that for the reasons set out above the applicant has made

out a case for the relief sought in the notice of motion to which this affidavit is

attached.

65 I submit further that as to the question of costs, the Minister ought to be

directed to pay the applicant's costs – this application having been precipitated

by the Minister’s failure to comply with section 29(2) of the Act and her failure to

respond to the applicant’s letter of 3 February 2015, notwithstanding

undertaking to do so by 16 February 2015.

66 Furthermore, I am advised that under the by-now trite principles on costs in

constitutional matters, in the event that the applicant for any reason is not

successful in this application, then it should not be required to bear the

respondents’ costs – it being clear that the applicant is litigating in good faith

and in the public interest.

_______________________

MICHAEL O’BRIEN

I hereby certify that the deponent knows and understands the contents of this

25

affidavit and that it is to the best of his knowledge both true and correct. This

affidavit was signed and sworn to before me at ______________________ on this

the ____day of ______________ 2015, and that the Regulations contained in

Government Notice R.1258 of 21 July 1972, as amended, have been complied with.

________________________________ COMMISSIONER OF OATHS

Full names: Address: Capacity: